Citation Nr: 0301466
Decision Date: 01/27/03 Archive Date: 02/04/03
DOCKET NO. 02-01 047A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Montgomery, Alabama
THE ISSUE
Entitlement to restoration of a 20 percent disability
rating for post operative small bowel resection with
history of short bowel syndrome with malabsorption and
anemia, to include the issue of whether the reduction in
rating was proper.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from June 1980 to
February 1981.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2001 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama, which reduced the rating for the
veteran's service connected residuals of a bowel resection
to a noncompensable rating.
FINDINGS OF FACT
1. A 20 percent disability rating for post operative
small bowel resection with history of short bowel syndrome
with malabsorption and anemia was established pursuant to
an August 1991 rating.
2. The rating remained in effect from April 30, 1991
until a reduction to a noncompensable rating was proposed
pursuant to a January 2001 rating, a period well in excess
of 5 years.
3. The rating reduction was effected pursuant to a July
2001 rating, and a noncompensable evaluation was assigned
effective from November 1, 2001.
4. The record does not demonstrate that, at the time the
RO reduced the 20 percent evaluation assigned the
veteran's post operative small bowel resection with
history of short bowel syndrome with malabsorption and
anemia, that there had been sustained material improvement
in the disability.
CONCLUSION OF LAW
The veteran is entitled to restoration of the 20 percent
evaluation for post operative small bowel resection with
history of short bowel syndrome with malabsorption and
anemia. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 1991 &
Supp. 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3,
4.6, 4.7, 4.13, 4.114, Diagnostic Code 7328 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 was recently
enacted. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
Supp. 2002) (VCAA). This legislation provides among other
things for notice and assistance to claimants under
certain circumstances. See also 38 C.F.R. § 3.159. Where
laws or regulations change after a claim has been filed or
reopened and before the administrative or judicial process
has been concluded, the version most favorable to the
appellant will apply unless Congress provided otherwise or
has permitted the Secretary of Veterans Affairs to do
otherwise and the Secretary has done so. See Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
The Board finds that the veteran was provided ample and
adequate notice as to the evidence needed to substantiate
her claims in the various rating decisions, statements and
supplemental statements of the case and other development
letters over the years.
The RO has made satisfactory efforts to ensure that all
relevant evidence has been associated with the claims
file; there are multiple VA examinations, treatment
records, and clinical medical records in the file. The
veteran has been offered an opportunity to submit
additional evidence in support of her claim. In short,
the Board concludes that the duty to assist has been
satisfied, as well as the duty to notify the veteran of
the evidence needed to substantiate her claim.
The issue on appeal pertains to restoration of a
previously assigned rating, and, in that context, the duty
to assist has not changed and still falls squarely on the
VA, to include affording hearings, obtaining identified
evidence, government records, affording examinations,
where appropriate and etc. where such would be helpful,
relevant and necessary for a full and fair adjudication of
her claim. Satisfactory efforts have been made in these
regards, and the veteran has been offered an opportunity
to submit additional evidence in support of the claim.
In the context of restoration of a rating, the subject of
"which information and evidence, if any, that the claimant
is to provide to VA and which information and evidence, if
any, that VA will attempt to obtain on behalf of the
claimant", Quartuccio v. Principi, 16 Vet. App. 183
(2002), is of questionable relevance in light of VA's
long-standing duty to assist with respect to this type of
claim and the VA's particular efforts in regards to the
veteran's claim versus any tacit obligation of the
veteran. Under the circumstances of this case, where
there has been substantial compliance with the VCAA,
additional development would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case;
such adherence would result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran). The Board concludes that given the completeness
of the present record which shows substantial compliance
with the notice/assistance provisions of the new
legislation, the Board finds no prejudice to the veteran
by proceeding with appellate review. See Bernard.
In short, the Board concludes that the duty to assist has
been satisfied, as well as the duty to notify the veteran
of the evidence needed to substantiate her claim, and the
Board will proceed with appellate disposition on the
merits.
A 20 percent disability rating for post operative small
bowel resection with history of short bowel syndrome with
malabsorption and anemia was established pursuant to an
August 1991 rating. The rating remained in effect from
April 30, 1991 until a reduction to a noncompensable
rating was proposed pursuant to a January 2001 rating.
The rating reduction was effected pursuant to a July 2001
rating, and a noncompensable evaluation was assigned
effective from November 1, 2001.
A rating that has been in effect for five years or more
cannot be reduced without observance of the requirements
of 38 C.F.R. §§ 3.344 (a) & (b). The provisions of 38
C.F.R. 3.344(a) provide that:
It is essential that the entire record
of examinations and the medical-
industrial history be reviewed to
ascertain whether the recent
examination is full and complete,
including all special examinations
indicated as a result of general
examination and the entire case
history. . . . Examinations less full
and complete than those on which
payments were authorized or continued
will not be used as a basis of
reduction. Ratings on account of
diseases subject to temporary or
episodic improvement, e.g., manic
depressive or other psychotic reaction,
epilepsy, . . . will not be reduced on
any one examination, except in those
instances where all the evidence of
record clearly warrants the conclusion
that sustained improvement has been
demonstrated. . . . Moreover, though
material improvement in the physical or
mental condition is clearly reflected
the rating agency will consider whether
the evidence makes it reasonably
certain that the improvement will be
maintained under the ordinary
conditions of life.
The provisions of 38 C.F.R. § 3.344(b) are as follows:
If doubt remains, after according due
consideration to all the evidence
developed by the several items
discussed in paragraph (a) of this
section, the rating agency will
continue the rating in effect,
continuing the former diagnosis with
the new diagnosis in parentheses, and
following the appropriate code there
will be added the reference "Rating
continued pending reexamination months
from this date, § 3.344."
The 20 percent rating in this case was in effect from 1991
to 2001, more than 5 years, and thus the provisions of 38
C.F.R. §§ 3.344(a) & (b), pertaining to stabilization of
disability ratings, apply. 38 C.F.R. § 3.344(c).
Under 38 C.F.R. § 3.344(a), a rating will not be reduce
unless sustained improvement has been demonstrated; and
the evidence makes it reasonably certain that the
improvement will be maintained under the ordinary
conditions of life. 38 C.F.R. § 3.344(a); see also
Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); Brown v.
Brown, 5 Vet. App. 413, 416 (1993).
VA is required to establish, by preponderance of evidence
and in compliance with 38 C.F.R. § 3.344(a), that a rating
reduction was warranted. Kitchens v. Brown, 7 Vet. App.
320 (1995). Where a rating is reduced without observance
of applicable law and regulations, such rating is void ab
initio. Id.; Brown v. Brown, 5 Vet. App. 413 (1993);
Dofflemeyer v. Derwinski, 2 Vet. App. 277, 282 (1992).
The Board observes that the level of the veteran's service
connected disability at issue was also recently considered
in the context of a November 1999 rating. In that
setting, the RO conceded that the evidence then showed
some improvement but "sustained improvement has not been
definitively established."
In the context of the proposed reduction, the veteran was
afforded a VA examination in December 2000. That
examination appears to have been the principal basis
relied upon for the rating reduction. It is not clear
that the examiner reviewed the complete medical history.
Moreover, the examination produced a diagnosis, in
pertinent part, of small bowel resection "with possible
residual effects". That examination diagnosis constitutes
no more than an uncertain medical expression as to the
extent of disability and, thus, cannot serve to
demonstrate clear improvement in the service-connected
disability. It bears emphasis that if doubt remains,
after according due consideration to the evidence
developed, the rating agency will continue the rating in
effect. 38 C.F.R. § 3.344(b).
The July 2001 rating decision makes clear that the rating
reduction was being made without consideration of the
provisions of 38 C.F.R. § 3.344. In that rating decision
the RO reported that the rating was not being reduced
because sustained improvement had been shown. Rather, the
RO reported that the rating reduction was being made
because "a noncompensable evaluation is assigned unless
there is a symptomatic condition with diarrhea, anemia,
and inability to gain weight. . . ." Diagnostic Code
7328.
Although the SOC provided the veteran with applicable law
and regulations pertaining to the large intestine,
Diagnostic Code 7329, when the germane rating criteria are
for the small intestine and are listed under Diagnostic
Code 7328, that error is more or less harmless inasmuch as
the pertinent rating criteria for the small intestine were
actually considered in the analysis. The gravamen here is
that the provisions of 38 C.F.R. § 3.344 were not
addressed.
The Court has held that "[t]here is no question that a
disability rating may be reduced; however, the
circumstances under which rating reductions can occur are
specifically limited and carefully circumscribed by
regulations promulgated by the Secretary." Dofflemeyer v.
Derwinski, 2 Vet. App. 277, 280 (1992). The Court further
stated "after-the-fact justification cannot resurrect a
flawed rating, one which was arrived at in derogation of
the regulations promulgated by the Secretary." Id. at
282. In Schafrath v. Derwinski, 1 Vet. App. 589, 595
(1991), the Court held "[w]hen the issue raised is a
rating reduction and the Court determines that the
reduction was made without observance of law - here 38
C.F.R. § 3.344(a) -- this Court . . . has ordered
reinstatement of the prior rating." The examination upon
which the reduction was based in this instance, rather
than demonstrating sustained improvement, was equivocal as
to residual effects.
The Board concludes, therefore, that the veteran's rating
was reduced without consideration of whether sustained
improvement had been demonstrated under the ordinary
conditions of life under the provisions of 38 C.F.R. §
3.344. The failure to comply with the provisions of that
regulation renders the rating reduction void ab initio and
the 20 percent evaluation must be restored as a matter of
law, effective the date of the reduction.
ORDER
Restoration of the 20 percent disability evaluation for
post operative small bowel resection with history of short
bowel syndrome with malabsorption and anemia is granted,
subject to the applicable provisions governing payment of
monetary awards.
C. P. RUSSELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.